HUKAM SINGH Vs. STATE

JUDGEMENT

(1.) THESE two appeals arise out of the same judgment and order of the learned Sessions Judge, Pali, dated 29th November, 1958, convicting the appellant under section 302 of the Indian Penal Code and sentencing him to imprisonment for life. One of the appeals was preferred from jail while the other has been presented through counsel in Court.

(2.) THE facts leading to the prosecution have been carefully summed up in the judgment of the learned Sessions Judge. Briefly they are as follows: THE case relates to an incident which took place early in the afternoon of 13th June, 1955 resulting in the death of Ummaid Singh, a young man of only about 30 years, who was the eldest son of the appellant. Besides the deceased the appellant has two more sons named Raghuraj Singh (P. W. 1) and Balbeer Singh. He has also a daughter called Rajendra Kumari (P. W. 12), who is married to one Raghuraj Singh of Padampura in the District of Sawai Madhopur. THE first wife of Ummaid Singh had died leaving a daughter Mst. Taj Kanwar (P. W. 8), who was about 9 or 10 years old when the occurrence took place. Ummaid Singh was married a second time to Mst. Girdhar Kanwar (P. W. 11), a sister of Raghuraj Singh of Padampura. After the death of her mother, the daughter Taj Kanwar mostly stayed with her maternal grandmother in Bagru House at Jaipur. THE appellant lived in Lototi in a room which faces a lake on the first floor of the house known as Garh or Kot (small fort ). Ummaid Singh, the appellant's son, as also the younger son stayed in rooms in the ground floor, while the ladies Girdhar Kanwar, Rajendra Kumari, and the wife of the appellant Mst. Pratap Kanwar (P. W. 13) stayed in the Zenana portion of the house. Rajendra Kumari had come from Padampura to Lototi about a day before this occurrence and she was staying with Girdhar Kanwar. It appears that a few days before the unfortunate incident Ummaid Singh had gone in a marriage party and when returning from there he brought with himself his daughter Mst. Taj Kanwar to Lototi. This was only a day before the occurrence and he also happened to bring with him an engine of a flour m 11 which had been given to him as gift by his father-in-law. It is said that Ummaid Singh, who has been already handed overcharge of the management of Thikana Lototi, had taken a loan of Rs. 2,000/- from the accused for payment of some decree against the Thikana. On the date of the occurrence in question it is said that the appellant demanded the return of the money from him which led to some unpleasantness between the father and « the son. THE story as told by Mst. Girdhar Kanwar, the wife of the deceased, is that on this fateful day at about 8 A. M. Ummaid Singh was called by his father through a servant named Kalyan Daroga and the father demanded back the money. Ummaid Singh told his wife that Thakur Sahib had been quarrelling about the repayment of his money and asking to get out of his house. Ummaid Singh, therefore, took away from her the saman of the Thikana like "chanwat", "chhadi", horses' ornaments etc. and threw all those articles in front of his mother and then went away to his room in the ground floor. In the afternoon between 1&2 P. M. when Umaidsingh with his wife, sister and daughter was about to take his midday meal, he was again called by the appellant. Ummaid Singh then went to the appellant's room. THE story then proceeds that Girdhar Kanwar and Rajendra Kumari soon after heard a Halla in the appellant's room. THEse ladies then ran from their room which was also on the first floor about 20 yards away towards the appellant's room and as they started they heard the report of a pistol fire in that room and in quick succession there was a second report. By the time they had entered the room there was also a third fire from the pistol. Girdhar Kanwar noticed that the pistol was in the hands of the appellant and Ummaid Singh stood injured bleeding in the abdomen. Girdhar Kanwar and her mother-in-law Pratap Kanwar, the wife of the appellant, caught, hold of his hands and got the pistol released. THEn Girdhar Kanwar supported her husband in taking him out to the terrace adjoining the room, when a Chhut Bhai Narain Singh also arrived and took charge of Umaidsingh. Umaidsingh was later shifted with the help of Narainsingh,raghurajsingh &others in a truck to Jaitaran hospital, where Harakraj (PW16) finding his condition precarious sent information to the Sub-Divn. Magistrate and the police for having his dying declaration recorded. A Second Class Magistrate, Shri Chandi Dan (P. W. 7), then arrived at the Jaitaran Dispensary at about 6. 30 P. M. and recorded the dying declaration in the presence of Dr. Harakraj, Dr. Sohanlal and one Mr. Qurreshi, a Police Sub-Inspector. Dr. Harakraj, who had examined Ummaidsingh, noticed that he had a perforated wound in the abdominal cavity on the middle of the left side of the abdomen at the level of the umbilicus. He also noticed that the bullet had pierced the intestines. Since he apprehended that the condition of the injured was dangerous, he gave him first-aid and later removed him to Mahatma Gandhi Hospital in Jodhpur for operation, as the bullet lodged inside the abdominal cavity had to be taken out. THEy reached Jodhpur at about 9 P. M. when Ummaid Singh was immediately operated upon by Dr. Gangaram (P. W. 10), who extracted the bullet. THE condition of the victim does not appear to have worsened on the 14th but on the 15th evening he became restless and delirious; the pulse became feeble and ultimately he succumbed at about 7-30 P. M. that evening. THE autopsy on his body was performed by Dr. Radheymohan (P. W. 9) next morning at about 11 A. M. on 16. 6. 56 and this doctor was of opinion that death was due to shock on account of the gunshot wound.

(3.) THE oral evidence is largely of an unsatisfactory nature. Pratap Kanwar, the wife of the appellant, and Raghuraj Singh, his younger son, who, according to the dying declaration and the first information report were eye-witnesses to the occurrence have changed their statements in Court, and as held by the learned Sessions Judge told lies to screen the offender. Nothing better could be expected from witnesses of that character in view of their close relationship with the appellant. We have already dealt with the evidence of Raghuraj Singh and will advert to the evidence of Pratap Kanwar at later stages. THEre remains, however, the evidence of some witnesses which is quite worthy of credit and deserves notice. At the outset is the statement of Mst. Taj Kanwar, the daughter of the deceased by his first wife. THE girl is about ten years of age and though young, the learned Sessions Judge rightly held that she was a competent witness and gave natural and intelligent answers. This is evident from some of the preliminary questions that were put to her. THE girl after the death of her mother used to stay mostly with her maternal grand-mother at Bagru as we already know she had been brought by her father only a day before the occurrence. Her presence at Lototi on that day is admitted not only by Girdhar Kanwar, the wife of the deceased, and Rajendra Kumari, his sister, but also by Pratap Kanwar, his mother. This girl, as the evidence of Rajendra Kumari shows, was already present with her father in the room of the appellant when the occurrence happened. THE widow of the deceased, Girdhar Kanwar, also says that Taj Kanwar with her younger brother Robin (son of Girdhar Kanwar) had gone to the Thakur's room with their father. This girl deposes that she was in the room of her grandfather (Dadosa) when the pistol was fired. She also deposes about the quarrel between her father and the appellant about some money and that the pistol was lying on a sofa beneath the pillow oh which the grand-father was sitting. She says that her grand-father took out the pistol and fired thrice at her father. Her father received one pistol shot in the abdomen, one fire hit the door and another went straight in tank. She says that at that time her Chhota Kakosa (her uncle) and her grand-mother were also present. THE learned Sessions Judge has, however, considered it safe not to place reliance upon the evidence of this child witness because of certain confusions in her statement. THE first confusion pointed out is that she did not actually know whether the first shot hit the father or the second or the third, and she admitted that she learnt only from her father's sister Rajendra Kumari that the first shot hit her father. In her examination-in-chief it does not appear that she said that the first shot hit her father. All that she says is that her father received one pistol shot in abodmen and, therefore, there is no real discrepancy in her evidence on that point. THE fact that she plainly admitted what she learnt from her father's sister shows that her deposition in Court was unsophisticated and natural and was not the result of any tutoring. THE other confusion pointed out in her statement is that she went to the room of the appellant with Pratap Kanwar, Rajendra Kumari and Girdhar Kanwar, which, as the learned Sessions Judge observes, was not believable "because Rajendra Kanwar and Pratap Kanwar reached after the two shots had already been fired". Pratap Kanwar in the above quotation is apparently a mistake for Girdhar Kanwar. Earlier in her statement she had definitely said that her father and she went together. THE confusion may be due to the fact that the learned Session Judge allowed the cross-examiner to put involved questions to the child. In all fairness the questions ought to have been split up before they were put to the girl. It often happens that when questions of this kind are put, even adult witnesses give confusing answers and Judges have from time to time warned against such a practice being countenanced by courts of law. Before questions in cross-examination are put to witnesses it is the duty of the Court to see whether the question put involves a number of other questions and then split up the question and ask the witness to answer1 them in their proper sequence. In that event there is no likelihood of any confusion. Getting an answer to an involved question in monosyllables is bound to lead to confusions. Another point which has been urged against the acceptance of the evidence of this child witness is that on her own admission it appears that the Thanedar was with her the earlier night and in the morning she came to Court in a Tonga with the Thanedar. This by itself is not sufficient to discredit her testimony. She had to be escorted to Court by someone and in the circumstances of this particular case the Thanedar had to be extra careful in not leaving the work to the sweet mercies of her relations. THEre is no suggestion made to the Thanedar that he had tutored this girl and having examined her evidence with care we reel that in the main her statement is genuine and true, though there are a few confusions here and there. She proves that her grand-father, the appellant, was responsible for causing injury to her father with gunshot We are, therefore, not inclined to reject the testimony of this girl altogether.